October 2011 ~ Taj Archive

Nature And Sources Of The UK Constitution

“The constitution of UK is a written one.” This notion is contrary to the traditional understanding of the nature of UK constitution. Give your arguments for and against this view.

Submitted by
Syed Taj
Dated: October 24, 2013

The Constitution

The concept of a constitution dates to the city-states of ancient Greece. The philosopher Aristotle (384–322 b.c.), in his work Politics, analysed over 150 Greek constitutions. He described a constitution as creating the frame upon which the government and laws of a society are built.

British history that has led to a new beginning: the last time that happened was in 1066, when the adoption of constitutions was not part of the political discourse. The nearest Britain came to such an event after that was in the civil war in the mid 17th century. A document, called the Instrument of Government, was drawn up in 1653, and would have provided the basis for the future government of the country without a monarchy but with matters firmly under the control of Parliament. However, this was abandoned following the restoration of the monarchy in 1660.

Professor King is his Hamlyn Lecture offered the following definition: “A constitution is the set of the most important rules that regulate the relations among the different parts of a given country and also the relations between the different parts of the government and the people of the country.”

Thomas Paine said, “A constitution is not the act of government, but of a people constituting a government, and a government without a constitution is power without right…..A constitution is a thing antecedent to a government, and a government is only the creature of a constitution.”

Characteristics of UK Constitution

The history of the UK explains why there is no written constitution for the system of government. Since 1066, there has been no break in its constitutional history, apart from the constitutional upheavals of the late 17^th century. Instead of the constitution preceding and making the government, the arrangements for government came into being and subsequently developed. In other words, the British constitution was not made, it has grown – Sir Ivor Jennings.

Here are some of the characteristic of UK Constitution:

1. The constitution is flexible and based on continuity of development.

2. In the absence of a written constitution having the status of fundamental, or higher law, the concept of Parliamentary sovereignty or legislative supremacy represents the cornerstone of the constitution.

3. There is no strict separation of powers between the executive, legislature and judiciary, although a separation of functions exists and the concept retains importance under the constitution.

4. The United Kingdom has a constitutional monarchy.

5. The United Kingdom is a unitary, as opposed to a federal state

6. The legislature is bicameral in nature.

7. The judiciary is independent.

Source of UK constitution

We can now identify the sources of the British constitution, both legal and non-legal, as follows: constitutional land marks, European Union law, Acts of parliament, common law, scholarly writing, constitutional convention, prerogative power. The people who play crucial role for constitution are the crown, the prime minister, minister, members of the commons and lords and the judges.

The constitution of UK is a written one.

This is one of the most controversial issues regarding the constitution of UK.

Although the British constitution is traditionally characterized as ‘unwritten’ there are in fact numerous written sources which can clearly be identified as constitutional. Accordingly, it is strictly speaking more accurate to describe the constitution as not codified. By this is meant that not all the rules, written or unwritten, have ever been consolidated into a single document which we can refer to as ‘the constitution’.

Written constitution:

A written constitution is a codified constitution in which key constitutional provisions are collected within a single document, it is commonly known as written constitution. In a codified constitution the document itself is authoritative in the sense that it constitutes higher law. The constitution binds all political institutions, including those who make ordinary law. The provisions of the constitution are all said to be entranced. This means that they are difficult to amend and abolish.

Written source of the constitution:

1. Acts of Parliament

2. European Union law

3. Common Law

4. Scholarly Writings

Acts of parliament

Acts of parliament is the highest form of law within the United Kingdom. Over the centuries there have been many Acts of Parliament which have been of fundamental constitution importance. This includes-

Magna Carta 1215: This Act was enacted to protect citizens from arbitrary power and guarantee the right to a fair and trail by the jury.

· Acts of Union 1706 and 1707: This act united England and Scotland under a single Parliament.

· Parliament Acts 1911 and 1949: The House of Commons is more supreme than the House of Lords.

· European Communities Act 1972: Community law was enforceable in United Kingdom.

· Human Rights Act 1998: This Act incorporates most of the rights and freedoms guaranteed under the European Convention on Human Rights into domestic law.

· House of Lords Act 1999: This Act removes the right of most hereditary peers to sit and vote and a second stage of reform is planned, although its final form remains unknown at the time of writing.

· National security and Terrorism Acts: This includes Police Acts, Public Order Acts and other Acts which regulate state power and define the scope of civil liberties.

· Constitutional and Reform Act 2005: Under this Act the Supreme Court was established; separate from the Parliament.

· Fixed-term Parliaments Act 2011: Under this Act it introduced fixed-term elections for the first time to the Westminister Parliament. Under the provisions of the Act, parliamentary elections must be held every five years, beginning in 2015.

· Petition of Rights 1628: It’s a major Constitutional document that sets out specific liberties of the subject that the king is prohibited from infringing.

European Union law

There are two principal forms of European law which are sources of the constitution. Flaminio Costa v ENEL [1964] ECR 585 (6/64) was a landmark decision of the European Court of Justice which established the supremacy of European Union law over the laws of its member states. . It was to be 1973 before Britain became a member of the Community (as it then was, now European Union). Membership requires that states comply with the whole body of EU law as comprised in the Treaties and as defined by the Court of Justice, which sits in Luxembourg

The European Convention on Human Rights

The European Convention was drafted by the Council of Europe after the Second World War in order to provide European-wide protection of citizens’ civil and political rights against encroachment by state authorities. The Human Rights Act 1998 now enables most Convention rights to be enforced within the domestic legal system rather than in Strasbourg. The Act requires that domestic courts take into consideration the case law and opinions of the Court of Human Rights in giving judgment

The law of the European Union

Like the Convention on Human Rights, the original European Communities – now the European Union – were products of World War II. They were designed in this case to impose supra-national controls over the raw materials of war and to provide for a common market for the free movement of goods, services, capital and workers. Accordingly, Parliament may not pass laws which violate EU law, and must amend the law in line with the requirements of the Court of Justice’s interpretation of the law.

Common Law:

Common law may be defined as those rules which are product of slow process of long historical growth being based upon customs and traditions. These principles are not set down in any statute or ordinance. The Courts recognize these principles. The prerogatives of the crown, the right of trial by jury the right of freedom of speech rest almost entirely on common law.

Historically important court judgments include those in the Case of Proclamations, the Ship money case and Entick v. Carrington, all of which imposed limits on the power of the executive. A constitutional precedent applicable to British colonies is Campbell v. Hall, which effectively extended those same constitutional limitations to any territory which has been granted a representative assembly. A/G v. Jonathan Cape Ltd. This is an example though of where the convention has failed to apply in modern government. M v Home Office [1993] This established the law that the Home Secretary cannot ignore rule of law.

Scholarly Writings:

Works of authority on the United Kingdom constitution are books written by constitutional theorists that are considered to be authoritative guides to the UK constitution. The three most prominent works of authority are:

· Walter Bagehot's The English Constitution (1867)

· An Introduction to the Study of the Law of the Constitution (1885) by A. V. Dicey

· A Treatise on the Law, Privileges, Proceedings and Usage of Parliament (popularly known as Parliamentary Practice), first published in 1844, by Erskine May.

Unwritten constitution:

Unwritten constitution refers to an uncodified set of laws established through traditional practice. They are means of many laws passed over time to decide how things are run in the government. The UK constitution is based on unwritten constitution.

Unwritten source of the constitution:

1. Conventions

2. Royal prerogative

Convention:

According to Prof. Dicey Convention are those customs or understanding as to the mode in which various members of sovereign legislative body should exercise their discretionary authority. The substantial portion of U .H K. Constitution is based on convention. These are not codified in any book of law. The Courts do not enforce conventions but however, these rules are recognized by the constitution. Rules of the constitutional behavior which is considered to be binding by and upon those who operate the constitution but which are not enforced by the law Courts…nor by the presiding officers in the House of Parliament.

Major conventions in UK-

· The Crown must give Royal Assent to the bills.

· Prime Minister will be form House of Commons. The prime minister must be the leader of the political party winning a general election.

· The prime minister must be a member of House of Commons.

· Ministers must be appointed in advice of the PM.

· Every minister must be accountable for their own conduct and also fir the failure and success if their department. ( Individual ministerial responsibility )

· Ministers are collectively responsible for the decisions of the government. ( collective ministerial responsibility )

· Decisions of the Judiciary must not be criticized by MP’s and Ministers in public.

· Judges must not be involved in political activities.

· Parliament must be summoned to meet at least once a year.

Royal Prerogative:

The monarchy has a significant constitutional presence in these and other areas, but very limited power, because the prerogative is nowadays in the hands of the prime minister and other ministers or other government officials. Certain powers pre-dating the establishment of the present parliamentary system are still formally retained by the Queen. In practice almost all of these powers are exercised only on the decision of Ministers of the Crown (the Cabinet). These powers, known as the royal prerogative, include the following:

The appointment and dismissal of government ministers
The summoning, opening, prorogation, and dissolution of Parliament
The assenting to legislation
The power to declare war, and to deploy the armed forces
The power to conduct relations with foreign states, including the recognition of states or governments, and the making of treaties
The issuing of passports

To sum up, we can state that much of the UK constitution is now written down, in a whole swathe of statute law. However, a significant element is unwritten and indeed not law, being the Conventions of the constitution, which oil the wheels and plug the gaps. Vitally important matters like the existence of the Prime Minister and the real powers of the Queen are governed by convention.

Reference:

Books

Neil Parpworth, Constitutional and Administrative Law

Munro, C.R. Studies in constitutional law

Barnett, ‘The UK Constitution – a very brief history’’

Public Law Subject Guide

Journal Articles

The British Constitution Oxford University Press 2011

Barber, N : “Against a written constitution.” [2008] Public Law 11

Barber, N. ‘Laws and Constitutional Conventions’ (2009) 125 Law Quarterly Review 294

Blackburn , R : “The Royal Assent to legislation and a monarch’s fundamental human rights.” [2003] Public Law 205

Bogdanor, V and Vogenauer, S: “Enacting a British Constitution : Some Problems.” [2008] Public Law 38

Case laws

Class Lectures

Wikipedia

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